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Summer 2003
O'Shaughnessy's
Journal of the California Cannabis Research Medical Group

Medical Board Won’t Drop
Case Against Mikuriya

7/11 was not a lucky day for California cannabis consumers.

The morning papers described a Bush Administration challenge to the ruling (in Conant v. McCaffrey) that confirmed the right of doctors to discuss marijuana with their patients.
San Francisco AIDS specialist Marcus Conant, MD, and co-plaintiffs had sought to confirm their rights in January, 1997, after Bill Clinton’s Drug Czar threatened to revoke the prescription-writing licenses of any California doctors who approved cannabis use. Federal Judge Fern Smith (a Reagan appointee!) temporarily enjoined the feds (on First Amendment grounds!) from carrying out or repeating this threat. Then Judge William Alsup made the injunction permanent and the 9th Circuit Court of Appeals upheld his ruling. Now Bush’s lawyers are asking the U.S. Supreme Court to overturn it.

Also on July 11, Tod H. Mikuriya, MD, appeared in an Oakland courtroom trying to fend off an attempt by the state Medical Board to suspend or revoke his license. Mikuriya is accused of violating the Board’s “standard of care” in 17 cases (although the Board has yet to issue practice standards pertaining to the recommendation and approval of cannabis use).

Mikuriya, 70, has devoted a long, successful career to the study —clinical and scholarly— of cannabis. In 1967 he was the first director of non-classified marijuana research for the National Institute of Mental Health. In 1969 he published a case study of a problem drinker who successfully substituted cannabis for alcohol. He has resided and practiced in Berkeley, and consulted at local hospitals, since 1970. In 1972 Miku-riya published a collection of papers on cannabis from the pre-prohibition medical literature, keeping alive the flame of knowledge.

A Versatile Drug

When Dennis Peron launched the San Francisco Cannabis Buyers Club in the early 1990s, he told Mikuriya “There are people with diseases I never heard of.” Mikuriya signed on as medical consultant and began interviewing club members. He determined that cannabis was being used to treat a wide range of conditions, including post-traumatic arthritis, rheumatoid and osteoarthritis, fibromyalgia, seizure disorders, degenerative diseases of the central and peripheral nervous systems, cerebral palsy, multiple sclerosis, post-viral encephalopathy and neuropathies, post-injury pain, glaucoma, Meniere’s disease, migraine, gastritis, ulcers, Crohn’s disease, colitis (spastic and ulcerative), cystitis, thyroiditis, scleroderma, lupus, premenstrual syndrome, intractable itching, motion sickness, sinusitis, allergic rhinitis... the list goes on and on.

Mikuriya generalized in a 1995 interview: “Cannabis appears to be a unique immunomodulator analgesic that is useful in the control of automimmune inflammatory diseases throughout the body,”

Mikuriya played an advisory role to Peron and the co-authors of Prop 215. He was one of the few MDs to endorse Prop 215 in ’96 (when the California Medical Association wouldn’t) and his quotes added credibility to the Yes-on-215 campaign literature. The Drug Warriors came to see Mikuriya —correctly— as an indispensable figure in the medical marijuana movement.

Almost immediately after 215 passed, Attorney General Dan Lungren, who had led the opposition campaign, told an “emergency all-zones meeting” of California police chiefs, sheriffs, and district attorneys to ignore doctors’ letters of approval and to keep arresting and prosecuting citizens for marijuana possession and cultivation. Lungren’s objective was to force doctors to testify in open court in support of every cannabis approval (wasting their time, costing them money, exposing them to reprisals from the feds and the state medical board). Lungren’s top assistant, John Gordnier, subsequently sent out a memo to the DAs asking to be notified of any cases in which Mikuriya testified for the defense.

Lungren flew to Washington in mid-December 1996 to help the feds plan their opposition to California’s new law -a treacherous thing for California’s top law enforcer to do. Lungren met with DEA Administrator Thomas Constantine and top aides to the Drug Czar and the Attorney General. On Dec. 30, 1996, Gen. McCaffrey -flanked by Reno, HEW Secretary Donna Shalala, and Alan Leshner of the National Institute on Drug Abuse- held the infamous press conference at which they threatened California doctors. McCaffrey pointed to a large chart headed “Dr. Mikuriya’s (Prop 215 Medical Advisor) List of Medical Conditions” that included a misspelling (“migrane”) and a crude falsification (“recovered memories”). McCaffrey ridiculed the range of conditions for which Mikuriya supposedly would recommend cannabis. “This isn’t medicine,” McCaffrey declared, “this is a Cheech and Chong show.” He bluntly threatened: “a practitioner’s action of recommending [marijuana]... will lead to administrative action by the DEA to revoke the practitioner’s registration.” And it might, yet, despite Judges Smith, Alsup, the 9th Circuit, and the former First Amendment.

The Case Against THM

The Medical Board of California’s case against Mikuriya involves no complaints from patients or caregivers. All the complaints that MBC Investigators pursued came from district attorneys, police, and sheriffs who had failed to put certain citizens in jail because the citizens had Mikuriya’s approval to use and/or cultivate cannabis.

According to attorney Bill Simpich, “The Conant ruling, which is still law, and applies to the states, prevents any entity from initiating any investigation solely on the ground that a doctor recommends marijuana to a patient based on a sincere medical judgment. The Medical Board didn’t care about Dr. Mikuriya’s judgment, they used the knowledge of his recommendations -obtained from the cops and DAs- to start the investigation of 46 patients whose records they subpoenaed.”

Mikuriya has approved cannabis use by some 7,300 patients since Prop 215 passed. He says that “99.9 percent” of his patients had been self-medicating successfully with cannabis prior to consulting him. They were treating chronic pain (27%), spasticity (26%), and mental disorders (26%), and using cannabis as a substitute for alcohol and to induce appetite.

“It is remarkable how there have been no reports of adverse interactions with any other medications,” says Mikuriya. “ There is no comparing the safety of cannabis to any other medication available.”
drugs.”

The MBC accusation against Mikuriya rests on two definitions in the state’s Business & Professions Code. “Unprofessional conduct” is defined as “Prescribing, dispensing, or furnishing dangerous drugs... without a good faith prior examination and medical indication...”

And “dangerous drug” is defined as “any drug unsafe for self-use, except veterinary drugs that are labeled as such, and includes... any drug that bears the legend: ‘Caution: federal law prohibits dispensing without prescription,’ ‘Rx only,’ or words of similar import.”

Mikuriya’s lawyers contend that the Medical Board is making an illegal leap in applying statutes that pertain specifically to prescribing dangerous drugs to a doctor approving cannabis. They say it’s the Board’s fault, not Mikuriya’s, that requirements for physicians’ approving cannabis use have not been specified in the almost seven years since California voters passed the medical marijuana law.

Mikuriya’s lawyers also cite the “absolute immunity” provided by Prop 215: “Not withstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.”

According to Mikuriya, who was nearby at the creation, “The authors of Prop 215 put in this immunity clause precisely because they anticipated what has happened: a witch hunt aimed at doctors by law enforcement officials who resent limits being put on their power to punish.” Mikuriya says he’s willing to abide by practice standards, and in fact has drafted and proposed to the California Medical Association a set of requirements for physicians who consult with patients about cannabis use.

The 7/11 hearing was conducted by Administrative Law Judge Jonathan Lew and attended by some 30 Mikuriya supporters, including three other Bay Area physicians. (It was preceded by an hour-long, behind-closed-doors settlement conference at which Mikuriya was offered probation with conditions he considered unacceptable.)

Administrative law judges don’t make final rulings, they make “recommended decisions” to the government agencies that employ them, which the agencies can then adopt, reject, or revise. If Lew allows the case against Mikuriya to go forward, he will conduct a hearing on the facts of the 17 disputed cases. That hearing, at which Mikuriya is prepared to defend his approach, file by file, is scheduled to begin on Sept. 3

If Lew decides that the case should be dropped, the Medical Board could pursue it nevertheless by asking a Superior Court judge to order or conduct a hearing on the facts.

—Fred Gardner

 

 

O'Shaughnessy's
O'Shaughnessy's is the journal of the CCRMG/SCC. Our primary goals are the same as the stated goals of any reputable scientific publication: to bring out findings that are accurate, duplicable, and useful to the community at large. But in order to do this, we have to pursue parallel goals such as removing the impediments to clinical research created by Prohibition, and educating our colleagues, co-workers and patients as we educate ourselves about the medical uses of cannabis.
 
SCC
The Society of Cannabis Clinicians (SCC) was formed in the Autumn of 2004 by the member physicians of CCRMG to aid in the promulgation of voluntary standards for clinicians engaged in the recommendation and approval of cannabis under California law (HSC §11362.5).

As the collaborative effort continues to move closer to issueing guidelines, this site serves as a public venue for airing and discussing these guidelines.

Visit the SCC Site for more information.